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(c) When the Judges constituting the Division Bench differ in their opinion the LPA was maintainable and they could have decided on that day but as the same has remained undecided it has lost the status of an LPA (because of difference of opinion).

(d) There are three kinds of references under the M.P. High Court Rules & Orders, namely, a reference under Rule 11 read with Clause 26 of the Letters Patent and Rule 12 of the Rules occurring in Chapter I and the present case should be treated as a reference in the second category.

18. It is trite law that when the appeal itself is not maintainable it is not obligatory on the part of the Bench to express an opinion. When the decision in the case of Jamshed N. Guzdar (supra) has come into the field clearly holding that the LPA is not maintainable, our rendering an opinion would be a sisyphean endeavour for the simple reason, actually there is no jurisdiction on the part of this Court to decide the LPA. If it is not maintainable, any observation made therein would have no fruitful effect and in fact, in a way, would be totally unwarranted.

19. The further submission of Mr. Shrivastava is that if we would not answer the reference the difference of opinion between the Judges will stand. Such a submission has its own innovativeness and in a way, an intellectual exposition at a first flush but on a deeper probe and keener scrutiny, it has to melt into insignificance, for in the ultimate eventuate our opinion in answering reference wound tantamount to rendering a decision in the LPA which we presently can not do in view of the Constitution Bench decision of the Apex Court. What is impermissible to be done, need not be dwelled upon for the sake of it. Be it placed on record the present Full Bench decidedly is called upon to decide the LPA, as our agreement or disagreement would have really the effect and impact on the decision of the LPA which in praesenti, is not maintainable and not to be decided on merits. To say that differing opinions would still hold the field, in our considered opinion, is not correct and if we are permitted to say so, common sense does not give consent to it. What will stay in the field is the order of the learned Single Judge because deciding the appeal on merits which is well nigh impermissible because of the decision of Jamshed N. Guzdar (supra) would be an anathema to concept of maintainability.

21. The further submission of Mr. Shrivastava that Clause 10 has been abolished and not Clause 26 of the Letters Patent, is without any kind of substratum. While repealing Clause 10 the Legislature has intended not to provide a further appeal and the Supreme Court has held that the Legislature has the competence. Clause 26 of the Letters Patent deals with how a reference has to be dealt with. To give an example, the matter relating to ultra vires of a provision is listed before a Division Bench. There can be difference of opinion and in that case, the mode, the method and the manner would come into play. Similarly in respect of matters which are to be adjudicated by the Division Bench in the first instance. But when the learned Single Judge has rendered the decision and the appeal is carried out and the appeal has not been given finality by virtue of difference of opinion and in the meantime, there is a judgment by the Apex Court that LPA is not maintainable, we have no hesitation in saying that the whole case sits in a time machine in all perspective, warranting a decision in an LPA, which is not maintainable.